. >> questions? >> a common but not a question. my view on this one is that the very purpose of the ethics commission -- our role here is to take and why the voters greeted this multi step process is to take this out of the realm of motivation and politics and put the five of us -- to interpose a spy entities that are by their nature political. i did not need to hear anything from the mayor. it is before us as i mentioned to the public when they said why don't we just drop this, your wasting time and money. the voters said we need to do this.

the reason we have to do this is for the reasons you have just heard. so that we can independently, regardless of how it got here, make the determinations that the bill the record and make a recommendation and it goes through another political body with an extremely high standard just because the voters were looking for us to be a bridge, a separation, as independent as they can find body to do this. i do not think we need to inquire into any of that. >> i agree with you. i want to say one thing. i consider very seriously any allegation that someone came before us and did not testify truthfully. this does not work unless we have truthful testimony by people who are sworn under penalty of perjury. i'm not diminishing the seriousness of a perjury allegation.

the other thing is that the ethics commission could not adjudicate perjury. that is a matter for the da, it is a criminal action and not something we can decide. what is relevant to us is whether or not the testimony would help us decide whether official misconduct occurred. in my view, the issue is tioo collateral for it to merit additional testimony. our efforts to get a record that is complete, but also is as free as possible from issues that really are not material to our determination of official misconduct. vice-chairperson studley: i appreciate that we said. i did not mean to minimize any of that.

so i appreciate your saying that and i agree. >> and want to -- to not want to cut off any of the commissioners. i would appreciate it if the d.a. was not out there saying i will but the ethics commission do with it. i read the papers and i saw what he said. i agree with you that you could not make a finding that a criminal offense occurred, true, but you could make a factual determination of whether or not the witness testified falsely under oath in my view, that ought to impact your decisions. >> had you objected to the mariposa declaration, i would have been inclined to sustain it. he testified because he put in a declaration, you agreed to

cross-examine him. maybe -- may have been effective. just because he testified about it does not mean in this material to our decision about whether your conduct -- client committed official misconduct. >> the reason i disagree with that opinion is, the mayor is the prosecutor here. he is the chief accuser. in any other context, in a criminal context, when the accuser is biased, when the person bringing the charges, the d.a., city attorney, an attorney general, if they are biased, that buys can be elicited and they can be recused from further prosecution. we do not have the remedy here. our remedy is to try to expose it if it exists and there is no other way for us to do this. >> i understand your position. i do not think that even if it is shown that he was -- even if

your proffer is correct, i am finding it hard to determine, how to see how that would be something material to our decision about official misconduct but i hear your argument. any questions or further comment? commissioner liu: i do recognize that determining credibility is paramount and fundamental to this contested evidence gerry proceeding but i recognize another principle is that impeachment should not be allowed when it is aimed at discrediting testimony that is just not material to what we have to decide. and so, i'm having a hard time seeing how either issue, whether the mayor asked a supervisor her opinion of how he should handle sheriff

mirkarimi's position or no. 2, the issue of whether the mayor authorized offering a lower ranking position. i have a hard time seeing how either of these issues tend to prove or disprove what the sheriff engaged in acts on december 31 that would price to the level of official misconduct. i am inclined to agree with my colleagues and commissioner studley in following official -- additional testimony. >> i do not know if you want a response or not. i could respond if you want a response. >> i will leave it to you. commissioner liu: no. not really. commissioner renne: i went back into the look at the transcript,

portions of the transcript where the question, the question that were at issue were raised, and there were objections to the admissibility as being immaterial. i think we may have been too lax in letting it come in. i share the view that has been expressed here that, regardless of what the answer would be and to the testimony you want to put in, i am sure it will not be clear cut one way or the other based upon the stories that appear in the newspaper. denials and -- it will not be clear cut but even if we did, it has nothing to do with whether or not there was a violation which constitutes official misconduct. it has nothing to do with that.

it is a totally separate matter and if you like to pursue it someplace else, fine. >> i would respectfully disagree. this is why. the mayor has argued that his suspension of the sheriff was discretionary. it was an exercise of his discretion. respectfully, the phrase rise to the level of official misconduct implies that there is a definition of what official misconduct is or is not. that is not the case and the mayor has conceded it is a discretionary decision. there is no real definition. conduct that falls below a standard of decency, good faith, and action. determining what fits into this parameter is is a discretionary decision. the mayor's discretion is at

issue. you have to decide, did the mayor exercise his discretion in a reasonable manner when he suspended the sheriff? is the mairs idea of what he thinks is official misconduct, is that reasonable? did he exercise his discretion reasonably? his credibility, his truthfulness go to whether or not he exercised his discretion in a reasonable manner. and if the shoe were on the other foot, if the mayor had alleged that the sheriff was not truthful, as he has, they brought forward the transcripts and he allowed that in. allowed many other kinds of impeachment evidence in against the sheriff. now, there's an cragle evidence that the mayor was not truthful as to who he talked to about the suspension, about the official misconduct, all that goes to his

discretion. the claim that contrary to ms. kaiser's claim that it does not matter whether or not the mayor perjured himself, of course it matters to her determination. whether anyone has come before you. you find official misconduct or making the recommendation. again, it is about the mayor's exercise as to his discretion and whether or not he was truthful. he is the charging official. if the charging official lies under oath, what does that say about this entire proceeding and you determined that we did not care. the definition is so broad, what can rise to level of official misconduct? what rises below it?

>> we need to determine that. i agree that it is confusing. with respect to the sheriff, the sheriff and the mayor in -- are in different positions. testimony is relevant to whether or not official misconduct occurred. we're talking about vastly different types of testimony. the way to give to the sheriff's testimony and the effort to impeach is much more critical to what ever the mayor had to say. even if the mayor had the worst motives to bring this before the sheriff, if the conduct does rise to let all, official misconduct, i think we're obligated under the charter to find official misconduct occurred. if he had the purest of motives but the conduct does not rise to the level of official misconduct, it is irrelevant as

to whether he thought you was doing the right thing. >> i do not understand how you can determine that without some to -- parameters. >> i was with you up to the park when is it would be a hard decision. but the mayor. the individual view, not a legal deal that will be put before us by the attorney who stand in the prosecutorial world, their view this matter as is yours. we're not here to evaluate the exercise of discretion. i disagree with you completely. we are here to find a specific question about whether this is an official misconduct. that is not an easy question, i wish it were. the mayor's motivation for

bringing this charge is not on my mind and do not think will be part our determination. >> is it then and relevant whether or not the mayor lied under oath? >> that is a separate question from the facts that we have to find about whether there was an official misconduct. >> i addressed that at the beginning. we take seriously any allegation there was -- >> why we do not hear from witnesses testimony as to that issue. if you're taking it seriously, why not hear from witnesses who could shed light on that. >> we have addressed this several times. i do not think we need to address it again. i comments from the commissioners on this issue? -- are their comments from the commissioners on this issue? the impeachment testimony is denied. the last thing we need to talk

about is what the commission needs in advance of august 16 so that we can make a recommendation to the board on that day. one thing i think would be very helpful is a document that is finding the facts. here's my idea. i welcome input from everybody on this. the sheriff has identified the pair grabs that he disputes. that is paragraphs six through eight of the charges, 1924, 26, and 30. that was -- joye have that correctly? -- do i have that correctly?

>> 19 through 24, 26, and 30. all the other paragraphs are stipulated to. i do not see a need to have factual findings on this. they are conceited as true as stated in the charter. the focus of the party should be on evidence, that supports or not support -- does not support 63, 1924, 26, and 30. -- 19 through 24, 26, and 30.

you'd want to identify additional facts he thinks has been established that are in favor of the defense. the mayor may want to as well. my thought is that each of you have five additional facts that you can identify and then put supporting evidence for. my thought is that you submit that so the other side can put the citation with the record they think disputes that fact or the can say they stipulate. does that make sense? have we lost you? >> i would have -- i have not had the opportunity to sit down and parse through the amended charges in that paragraph. and so i am concerned about

agreeing to a number that may turn activate the lovetere person think that we cannot work with. >> here is my concern. these are your charges. presumably, you put in their everything that you think we need -- and we found everything in your charter to be true, we should find that official misconduct occurred. i am concerned if there would be more than five additional facts that you would need in order to prove your case. secondly, you have to realize that we're about one judge. we cannot make decisions and then give you a document that provides it with the answers. we need you to decide each of these facts and that could -- it

will not be feasible to receive 40 different facts and try to decide each one of them. it has to be limited. >> i completely understand and agree with and share that concern. i'm not trying to create a free- for-all by any means. i can -- i want to they know of few things. we followed the charter's direction which was not clear that we needed to file written charges. it did not say that it needed to be a particular kind, that it needed to be much more complete beyond notice, pleading. i can tell you for a big factor, if that was the standard, i was not aware of it. >> you found a bill of particulars. >> wi-fi elspeth's more specific written charges sitting at the different accounts separately. we did not -- you understand

what i'm saying. i can tell you what our understanding was and what we believe were gutted by. we did not understand it was the case that there is a separate pleading standard that we needed to meet. it was not clear at that time. that is understandable given the vagaries of the charter that we're struggling with and the novelty of this procedure. i want to put again my asterisk there that it is possible there are key issues you might want to address that you will not find already. >> which is why i am recommending we give you five additional facts. i am also not moved if you have not studied -- that the share of identified because you were included on this. your lack of preparation is not

particularly moving. so, is that acceptable, five additional facts? >> i would add that each of the counts has one paragraph that basically summarizes, here's what you should draw from these other factors. i certainly would not want to lose the opportunity to have those paragraphs be part of our proposed findings. the other side did not find them. i would want those -- the leeway to have a summing up factual finding at each of the counts. those have not been identified and it seems like that might be helpful. >> any objection? >> no. >> that is fine.

the other thing that would be helpful and i have created a visual. it was sold confusing, i did not know how else to explain it. for the overhead, and i have copies for you will. ok, thank you. here is my problem and you can focus on the tough part. can you see the colors there?

the one in red. >> this provision is susceptible to -- acceptable to two prairie interpretations. option one is one that was identified in the mariposa amendment -- the mayor's sharges. -- charges. conduct would modify -- this would modify what official conduct means. the import, if we were to read it this way, no. 2 has little or any relationship to the official -- the duties of the official. do you understand why i would

think that? >> yes. there may be an access but it is not based on the official duties. >> if you could put option to out. -- two up. the other way of reading this, if one and two modify that first part -- modified and that first part of the paragraph that ends with including. under that reading, conduct that falls below standard of good faith and right action would have to relate to the duties of the office. the red is wha t i put n. that is something that would help me, briefing on which one

of these is the right way to read this provision. >> i want to thank you for bringing that forward as clearly as it did. i have this struggling with the same question since i read the charter provision. i think that is free critical and would appreciate briefing on this one as well. >> to the praise follow -- and did the parties followed? >> if you are going to see you briefed it, you did not. not this. i went back and checked. i need to know why -- i assume that you will think option two is right. i want to know why, without big assertions of what you think is the right thing. i want it parsed and i want to

know why you think your view makes most sense because there is not a lot of precedent to decide it. same for the mayor. isam you think option one is right. i want a clear -- as clear as you can, whatever president to help us figure out whether option one or two is the right way to go. >> [inaudible] >> you can make that argument. i understand. ok. beyond that, i think there would be open if you wanted to argue other issues in briefing but that is the primary one. how many pages do you think you need to make that point? >> that particular point?

>> yes. >> you with the abstract -- you want the abstract, not the fact of the case? >> here is what else i was envisioning. it would be helpful if we had 30 minutes -- closing arguments to tie together for us so in the briefing i do not think we need to see it. if you want to brief it, i would not object if you agree. but what i need briefing on is this option. option one or option two. are their options the

commissioner would like -- commissioners would like briefing on? >> i would be interested in two particular points on the same issue. if you could brief any legislative history on the charter amendment that included the second prong. that would be interested -- i would be interested in seeing. and whether you think which way that cuts for you. >> what do you mean by the issue raised in mazzola? >> in the muzzle case, a it does adopt -- mazzola case, ithe charter adopts the stand that was in the mazzola case that leads to the first prong.

i would like briefing on which we that would cut. >> the mayor does not necessarily agree with you. the mazzola case cites a number of legal authorities. the charter language comes from one of the authorities. it is not a holding in mazzola. >> that is the issue i am struggling with and that is why would like briefing on is what i am saying. >> i would have -- address mazzola and how it impacts option 1 or option two. >> anything else? 15 pages? >> there are additional issues

and we have never had an opportunity to brief our understanding of the elements of the case. even if regardless of whether you split into option 1 or option to, there are elements within a or b that i would brief and put before the commission. it is not clear with the duties of office are. to say that the duties of office applies to both is not -- does not help us determine what you can properly considered to be the duties of office. i would like to address issues like that. >> what does that mean? how many pages do you want? >> i would like to submit up to 30 pages. >i will not waste them. if i do not need them, i will not use them but it is more efficient to raise the issue